Tuesday, April 7, 2009

Vermont Legislature Overrides Veto, Legalizes Same-Sex Marriage

Vermont has become the fourth state to recognize same-sex marriage. Yesterday, Governor Jim Douglas followed through with his threat to veto legislation that legalized same-sex marriage. Today, however, the state legislature swiftly overturned the veto, by a vote of 23-5 in the Senate and 100-49 in the House. Prior to the veto override, former governor and past presidential candidate Howard Dean urged lawmakers to pass the measure.

Vermont joins three other states that recognize same-sex marriages. Last week, the Iowa Supreme Court unanimously held that a state prohibition of same-sex marriage violated the state constitution. The Connecticut Supreme Court issued a similar ruling last year. And in 2004, the Supreme Judicial Court of Massachusetts invalidated a state ban on same-sex marriage. Although the highest courts in Hawaii and California also invalidated those states' prohibitions of same-sex marriage, voters overturned those rulings by constitutional amendment.

Social Movements ActivityThe dramatic movement on this issue results from a litigation strategy devised by same-sex marriage proponents. Vermont is the only state to legalize same-sex marriage through legislation. Although court involvement in the issue has led some commentators to make claims of "judicial activism," the rulings have reasonably applied existing state law doctrine.

President Obama has stated that he does not support same-sex marriage. And while marriage is typically regulated by local law, the constitutional issues the subject implicates can bring it into the purview of federal courts. Advocates, however, have largely avoided the federal courts given their conservatism. Nevertheless, a recent litigation seeks to invalidate a portion of the Defense of Marriage Act that denies equal federal benefits to same-sex couples who are lawfully married in their home states. The Obama administration has not responded to the lawsuit, but during his campaign, he said that he supported the repeal of DOMA.

Closing ThoughtI often disagree with proponents of same-sex marriage because they typically do not favor disbursing important social benefits (health care, etc.) to nonmarital relationships. Nevertheless, I support the recent rulings and legislation because the denial of same-sex marriage raises very compelling equal protection and fundamental rights concerns. The recent success of this movement, however, should not foreclose debate over the necessity of using marriage as the exclusive or primary vehicle for distributing social resources and benefits.

14 comments:

One of the arguments that people who are in favor of same sex marriage is that marriage is a fundamental and civil right and that the government should not deny them the right to marriage. My question is this—does this mean that polygamy should be allowed, that incestual marriages be allowed? If people who are in favor of same sex marriage say no, then that says that the government has the right and authority to determine who can marry whom. Then the argument for same sex marriage becomes not of a denial of a fundamental and civil right but rather why same sex people should be allowed to marry i.e. does society benefit from allowing same sex people to marry or does the government have a compelling reason to not allow or recognize same sex marriages. I have not heard (I am not saying there have not been any) any arguments from people who are in favor of same sex marriages that says that yes, the government has the right to “regulate” marriage.

Wrong question. In a free society, the burden of proof should always be on the side that wants to prohibit something -- that is, they should have to show that society will be harmed by it, as opposed to proponents having to show that society will benefit. Lots of things that don't benefit society are and should be legal, as long as they do no harm.

Aside from that, I would argue that allowing same-sex marriage benefits society in most of the same ways as allowing opposite-sex marriage does.

My question is this—does this mean that polygamy should be allowed, that incestual marriages be allowed?

I really don't see any reason why not, as long as only fully-consiting adults are involved.

FYI, consenting-adult incest has been legal in France, Spain, and Portugal for decades, and Romania is corrently considering the same reform. The sky has not fallen. I don't know whether those countries allow consanguinous marriage.

I have not heard (I am not saying there have not been any) any arguments from people who are in favor of same sex marriages that says that yes, the government has the right to “regulate” marriage.

I think the government should regulate marriage in the sanse of preventing forced marriage and child marriage -- because those things are clearly harmful.

Daniel Durham -- the Court first entertained an argument over the legitimacy of anti-polygamy laws in 1878 -- long before anything called "same-sex marriage" was ever debated. Apparently, "traditional" heterosexual marriage raises questions over the legitimacy of polygamy on its own.

Most polygamy is heterosexual in nature. If people want to prevent "polygamy," they could do so by getting rid of heterosexual marriage (not just banning same-sex marriage).

People who raise the polygamy (and incest) argument, however, either consciously or unconsciously privilege heterosexual marriage by deeming it neutral and "uncomplicated." Same-sex marriage, by contrast, destroys "our culture" and places us on a dangerous slippery slope. I have not heard any same-sex marriage opponents explain why heterosexual marriage does not place us on the same slippery slope to incest, polygamy and bestiality. See: Sorry, Adam and Steve: If You Get Married, We Must Allow the Smith Triplets to Wed Each Other As Well!

"It is through convention—a word much abused in our time—that we contrive to avoid perpetual disputes about rights and duties: law at base is a body of conventions."

The legislature serves at the pleasure of the people. If a law proves to have unintended consequences then it is easily changed.

When a court rules on controversial matters it is very difficult for the people to make corrections.

The court's deference to stare decisis sometimes permits clever advocates to narrow issues in such a way that the court must make a logical yet wrong ruling. A list of citations overwhelms the common law which is the basis for the social contract.

Roy - thanks for your post. Courts are far more deferential than the rallying cry of "judicial activism" suggests. An abundance of political science literature on the Supreme Court, for example, shows that the Court's opinions are no more outside of known public opinion than the actions of the "political branches" of government. In other words, the Court does not use its power to trump the "will" of the people.

Also, I would argue that a constitution reflects the will of the people. We create constitutions and courts for a reason -- to serve as a check on the political process. If ordinary legislation is the "supreme law of the land," then we do not need a constitution. If legislatures speak with more authority than courts and in fact can overrule their decisions, then we do not need courts.

I agree that courts rulings can contradict the public will. But in response, I would simply say: 1. This does not happen too much from an empirical perspective; and 2. The Democratic process created courts and the constitution to serve as a check on democracy itself.

PS: Roy - the fact that state constitutions in Massachusetts, Iowa, and other states require years for an amendment to pass demonstrates that the democratic process in those states has decided to immunze courts (and constitutions) from the emotional impulse of voters.

If Iowans wanted the ability to enact a rapid reversal of caselaw, they would amend the state constitution to permit it. But they have not done so. Their inaction allows court rulings to stand while the public engages in sober debate over the issues.

there will be no backlash from the Vermont vote because it was handled in the legislature where it belongs. Its when courts impose their will on people that winds up pissing them off. It has been my contention that for gay marriage to be truly successful it has to be mainstreamed through the legislative process. Its not easy but more people are prone to live with what their legislatures do then what the courts do.

Joe - when courts issue rulings that deviate sharply from known public opinion, they face resistance. But I am not sure we have that situation in Iowa (or Connecticut). First of all, Iowa law does not permit an "immediate" constitutional amendment, which prevents kneejerk "kill the court" reactions. Second, the court did not "impose its will" on the "people" of Iowa. Instead, it interpreted Iowa constitutional law. If you have not read the ruling, I encourage you to do so. Third, "the people" do not really have to "live" with this one. Marriage licenses are issued by the state; all this requires is for states to issue them. Now, this does not mean that the public will not attempt to overturn the ruling, but the waiting probably guards against that.

Question: Do you believe that courts must never invalidate statutes? Do courts impose their will on people every time they invalidate laws? If you believe both of these things -- what is the role of courts, in your opinion? Do they simply exist to uphold laws? If so, what's the point of having them?

It seems to me the cries of judicial activism are evidence of disrespect for the system of government our founders created. Whether or not one agrees with the decisions judges make, looking at the circumstance brought before them and interpreting the laws that govern that circumstance is their job. The laws under which we live are subject to judicial review for a reason.

I also agree that having a long and difficult process for the people to in effect create their own laws is a good thing. One of the hallmarks of our form of government is the protection of the minority from the heated will of the majority. (In fact to me, that is much of what the gay marriage movement--and those who oppose it--is about.) We are not a direct democracy, in part because decisions made in the heat of passion are not good, sober decisions, and because in a land where various kinds of people live, direct democracy would often become 1000 wolves and 100 sheep voting on the dinner menu. Here in the US, we believe the sheep deserve protection, and thus we have constitutions and laws that mandate a more level playing field. Difficult amendment processes, and indeed the judicial system, are a part of the process to keep the field level. As progressive an idea as California's referendum initiative may at first seem, it short circuits those protections of the minority sheep from the will of the majority wolves.

It is entirely proper for courts to read the body of law and apply it to the situations brought before them. Sometimes the law contradicts the will of the majority, and protects the minority from metaphorically becoming dinner. Protecting the minority voice is one of the purposes of our American judicial system. While we may not always agree with their decisions, we shouldn't fool ourselves into thinking that our disapproval means they're not doing their job properly. Indeed, our disapproval very well be proof that they are...

Political winds don't always allow for new legislation that protects a given minority (although VT proves that sometimes new legislation can, in spite of the way the wind is blowing). Sometimes it is old legislation, together with judicial review, that protects the minority.

About Me and the Blog

Professor Darren Hutchinson teaches Constitutional Law, Remedies, Race and the Law, and a Civil Rights Seminar at the University of Florida Levin College of Law. Professor Hutchinson also holds the prestigious Stephen C. O’Connell Chair.
Professor Hutchinson received a B.A. from the University of Pennsylvania and a J.D. from Yale Law School. Before teaching law, Professor Hutchinson practiced commercial litigation at Cleary, Gottlieb, Steen and Hamilton in New York City. He also clerked for the late Honorable Mary Johnson Lowe, a former United States District Judge in the Southern District of New York.
Professor Hutchinson's research has appeared in many prestigious journals including the Cornell Law Review, Washington University Law Review, UCLA Law Review, University of Michigan Journal of Race and Law, and University of Pennsylvania Journal of Constitutional Law.
He has also presented his research at numerous universities, including Yale, Stanford, Columbia, University of Pennsylvania, University of Michigan, University of California at Berkeley, University of Virginia, Cornell, Georgetown, and Boston University.

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